This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is both timely and important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time.

In the essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-DOMA tax terrain may actually be worse for same-sex couples than the already bleak tax landscape. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the tax laws applied to their relationships. Post-DOMA, same-sex couples will see this uncertainty multiply. They will have to grapple not only with preexisting questions surrounding the tax treatment of relationships that are not recognized, but also with new questions regarding whether and when their relationships will be recognized for federal tax purposes. Even were these uncertainties to be resolved, I conclude the essay by describing how we may find that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our tax laws, failing to erase inequitable treatment along lines of marital status and class.